Citation Nr: 0619913
Decision Date: 07/10/06 Archive Date: 07/21/06
DOCKET NO. 03-22 105 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Boise,
Idaho
THE ISSUES
1. Entitlement to service connection for cause of death.
2. Entitlement to dependency and indemnity compensation
(DIC) under 38 U.S.C.A. § 1318.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Counsel
INTRODUCTION
The appellant is the widow of the veteran who is reported to
have had active service from May 1971 to October 1972.
FINDINGS OF FACT
1. A July 1974 rating decision granted service connection
for lumbosacral strain and assigned a 10 percent rating, an
July 1975 rating decision assigned a noncompensable rating,
an August 1988 rating granted service connection for lumbar
disc disease and assigned a 20 percent rating, an April 1991
rating decision increased the rating for lumbar disc disease
to 40 percent, an August 1992 rating decision increased the
rating for lumbar disc disease to 60 percent from January
1991, an April 1994 rating decision continued the 60 percent
rating for lumbar disc disease and assigned a 60 percent
rating, effective from January 1993, and an August 1995
rating decision granted a total disability rating based on
individual unemployability, effective from December 1994.
The record reflects that the veteran died in December 1999.
2. The death certificate indicates the underlying cause of
the veteran's death as severe metabolic acidosis, septic
shock and metformin accumulation, and suspected
influenza/staph pneumonia. Another condition noted as
contributing to death but unrelated to these causes was
diabetes mellitus.
3. The medical evidence establishes that the severe
metabolic acidosis, septic shock, metformin accumulation,
suspected influenza/staph pneumonia, and diabetes mellitus
which caused or contributed to the veteran's death were not
incurred in service, and establishes that service-connected
disability, or treatment thereof, did not cause, contribute
to, or accelerate his death.
4. The veteran was service connected for his only service-
connected disability effective from January 1993 and was
subsequently provided a total disability rating effective
from December 1994; the veteran was not rated totally
disabling continuously for a period of five years from
service separation or for a period of ten or more years
immediately preceding the veteran's death in December 1999,
and benefits under 38 U.S.C.A. § 1318 are therefore not
authorized.
CONCLUSIONS OF LAW
1. The death of the veteran was not caused by a disability
incurred in or aggravated by service, nor did a service-
connected disability cause or contribute materially or
substantially to the veteran's death. 38 U.S.C.A. §§ 1310,
5107 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2005).
2. Service-connected lumbar disc disease was not rated as
totally disabling continuously for five years from service
separation or for a period of ten or more years immediately
preceding the veteran's death in December 1999, and benefits
are therefore not authorized. 38 U.S.C.A. § 1318 (West
2002); Sabonis v. Brown, 9 Vet. App. 426 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Compliance with the Veterans Claims Assistance Act of
2000
At the outset, the Board notes that this matter has been
sufficiently developed pursuant to the guidelines established
in the Veterans Claims Assistance Act of 2000, 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005) (VCAA).
In this regard, the appellant was advised in a March 2001
letter of the evidence necessary to substantiate her claims
for service connection for cause of death and DIC under
38 U.S.C.A. § 1318, and the respective obligations of the
Department of Veterans Affairs (VA) and appellant in
obtaining that evidence. Quartuccio v. Principi, 16 Vet.
App. 183 (2002).
Although the March 2001 VCAA notice letter did not
specifically request that the appellant provide any evidence
in her possession that pertained to the claims as addressed
in Pelegrini v. Principi, 18 Vet. App. 112 (2004), as
demonstrated from the subsequent communications from the RO,
the Board finds that appellant was otherwise fully notified
of the need to give to VA any evidence pertaining to the
claims. All the VA requires is that the duty to notify under
the VCAA is satisfied, and the claimants are given the
opportunity to submit information and evidence in support of
their claims. Once this has been accomplished, all due
process concerns have been satisfied. See Bernard v. Brown,
4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553
91996); see also 38 C.F.R. § 20.1102 (harmless error).
The Board further notes that the appellant has been provided
with the applicable laws and regulations, and there is no
indication that there are any outstanding pertinent medical
records or reports that have not been obtained or that are
not otherwise sufficiently addressed in documents or records
already associated with the claims file. The failure of the
RO to provide January 2000 amendments to 38 C.F.R. § 3.22 do
not require remand as explained more fully below.
In the written presentation to the Board, the appellant's
representative argues that VA failed in its duty to assist by
not obtaining quality assurance records from the VA Medical
Center. VA's medical quality-assurance program consists of
systemic health care reviews carried out by or for VA for the
purpose of improving the quality of medical care or improving
the utilization of health care resources in VA medical
facilities. Such data may relate to the structure, process
or outcome of health care provided by VA. See 38 U.S.C.A. §
17.500(c). Under 38 U.S.C.A. § 5705, records created as part
of the medical quality-assurance program are confidential and
access is limited. The regulations at 38 C.F.R. §§ 17.500-
17.511 explain the provisions for maintaining confidentiality
and limit access to the documents.
It appears from the wording of 38 C.F.R. § 17.508(a) that the
need for quality-assurance documents for the performance of
governmental duties does not by itself suffice to authorize
access to quality-assurance documents, given that further
authorization, either through one of the specific
authorizations found in the regulations or by the direction
of specific VA personnel, is required. Adjudicative
personnel are not listed among the persons authorized in 38
C.F.R. § 17.508, nor is there any existing directive or
manual provision that provides the requisite authorization.
To the contrary, VA Adjudication Procedures Manual M21-1,
Chapter 22, paragraph 3, pertaining of the development of the
evidence relating to claims under 38 U.S.C.A. § 1151,
expressly states that quality-assurance investigative reports
should not be requested and that copies should not be filed
in a claimant's claims folder. Citing 38 U.S.C.A. § 5107,
the manual states that these reports are confidential and
cannot be used as evidence in the adjudication of such
claims.
The language of 38 C.F.R. § 3.508(a) may not be construed to
permit the procurement of quality-assurance records by VA
personnel, including adjudication personnel, without further
authorization. This is particularly so in view of the fact
that the regulations also specify that efforts must be made
to protect the identities of peer reviewers and that notice
of penalties for unauthorized disclosure must be provided.
It is significant that no procedures relating to the use and
handling of quality assurance records during claims
adjudication or as to any controls that might be placed on
relocation to claims folders have been established. The
Board does not have the authority to invalidate VA
regulations or adjudicative manuals. Procurement of quality
assurance records would necessary entail their disclosure to
the veteran's representative. Redisclosure of quality
assurance records is subject to the disclosure rules set
forth in regulations §§ 17.500 through 17.511, and no
specific reference to claims representatives is found
therein. See 38 C.F.R. § 17.510. Unauthorized disclosure
may lead to monetary penalties. See 38 C.F.R. § 17.511.
Although VA is required under VCAA to make reasonable efforts
to assist a claimant in obtaining evidence necessary to
substantiate a claim for benefits, in the absence of any
specific provisions of the law or regulations that authorize
access to quality-assurance records for adjudicative use, the
Board finds that it is not required to obtain such records
pursuant to the duty to assist under the VCAA. Moreover, the
appellant's representative also has not presented any
convincing argument as to how quality assurance reports would
be relevant to this case, and speculative development in the
hopes that such records might possibly exist pertinent to the
appeal amount to a fishing expedition, which is not
contemplated under the duty to assist.
The Board has also obtained a relevant medical opinion in
this case, and the record reflects that the veteran was
informed of this opinion and given ample opportunity to
obtain and provide an opinion or other evidence in response.
She provided a private medical statement from Dr. S. and
other evidence in response to this correspondence in June
2006, and specifically waived the RO's initial consideration
of that evidence.
Consequently, based on all of the foregoing, the Board finds
that no further notice and/or development is required in this
matter under the VCAA.
II. Entitlement to Service Connection for Cause of Death
Background
In essence, appellant asserts that two weeks prior to the
veteran's death, an implanted morphine infusion pump related
to the veteran's service-connected lumbar spine disability
ceased to function, and that this complicated the diabetes
mellitus and coronary artery disease (CAD) that were causes
of the veteran's death. More specifically, the appellant
apparently contends that the diabetes mellitus and CAD were
aggravated due to the inactivity that arose from the lack of
pain medication and/or chemical imbalance that resulted from
the veteran's malfunctioning implanted morphine pump.
Determinations as to whether service connection may be
granted for a disorder which caused or contributed to the
cause of the veteran's death are based on the same statutory
and regulatory provision governing determinations of service
connection generally. 38 U.S.C.A. § 1110 (West 2002);
38 C.F.R. §§ 3.303, 3.304 (2005). Service connection may be
granted for any disability resulting from disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1110.
Additionally, to establish service connection for the cause
of the veteran's death, the evidence must show that a
disability incurred in or aggravated by service either caused
or contributed materially and substantially to cause death.
38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2005).
None of the service medical records discloses any reference
to metabolic acidosis, septic shock, metformin accumulation,
suspected influenza/staph pneumonia, or diabetes mellitus.
While the veteran's DD Form 214 does reflect 11 months and 22
days of foreign service, it was noted that there was no
service in Vietnam and Korea, service medical records reflect
the veteran's receipt of treatment at a U.S. military
facility in Taiwan from November 1971 to August 1972, and
there is otherwise no direct evidence of Agent Orange
exposure. Consequently, the Board finds that there is no
basis in this record to consider the presumptive provisions
relating to Agent Orange exposure. 38 C.F.R. §§ 3.307, 3.309
(2005).
VA treatment records for the period of February to May 1989
reflect diagnoses of high blood pressure and diabetes
mellitus.
A VA medical statement from October 1990 reflects a diagnosis
that included diabetes mellitus and CAD.
Private records from May 1994 reflect that the veteran
underwent surgery at this time involving the placement of a
Medtronic implanted intrathecal pump for his intractable low
back pain with radiculopathy of the lower extremities.
A private medical record from July 1995 reflects that the
veteran's problem list included insulin-dependent diabetes
mellitus, CAD, and metabolic acidosis.
VA records from July 1996 reflect an assessment of low back
pain and that the veteran was very upset with treatment at VA
and confrontational about having his pump filled with pain
medication. In September 1996, it was noted that the veteran
was still using the pump. In December 1996, it was noted
that the pump rate had been decreased. A December 1996
letter from the veteran's attorney noted that the veteran had
been told that some thought was being given to removing the
pump. If the pump was removed, the attorney wanted the pump
to be salvaged.
VA records reflect that the veteran's implanted pump was
again refilled in January 1997, June 1997, January 1998, June
1998, and November 1998.
VA treatment records for the period of April to December 1999
indicate that in May 1999, the veteran came in to have the
telemetry of his implanted pump to check the status of the
battery. Telemetry showed the battery alarm was enabled but
not alarming. The refill date was noted to be the end of
July 1999. His pain was noted as well-controlled at this
time. In November 1999, it was noted that the veteran's
implanted pump had been beeping the previous week and then
stopped. Telemetry could not be performed due to a dead
battery in the pump. The veteran was placed on oral
narcotics until the pump could be replaced. A VA progress
note from December 10, 1999 reflects that the veteran had
elected to have his pump replaced. The impression was failed
morphine pump, diabetes mellitus, CAD, post-traumatic stress
disorder, and chronic pain. The plan was to replace the
morphine pump. Ten days later, it was noted that the
veteran's mother called, indicating that the veteran had not
been taking his oral morphine and was experiencing flu-like
symptoms that could be an expression of withdrawal. Because
the veteran had diabetes, a respiratory infection with the
"flu," and heart disease, she was encouraged to transport
the veteran to the VA for evaluation.
Private emergency room treatment records from December 20,
1999 reflect that the veteran presented to the emergency
department early that morning with tachypnea, worsening
dyspnea, and chest congestion. It was also noted that he had
an infusion pump for pain that did not work and that he
wanted it removed. The mother of the veteran reportedly
stated that it had run out two weeks earlier, and it was
noted that the veteran was placed on morphine until another
pump could be reinserted. The diagnoses included bilateral
pneumonitis with sepsis, severe acute lactic acidosis
secondary to metformin, diabetes mellitus, and
arteriosclerotic cardiovascular disease, and hypertension.
The veteran was then transferred to A. Hospital, where the
reason for consultation was noted to be lactic acidosis,
pneumonia, and presumed sepsis.
The record reflects that the veteran died in December 1999.
The death certificate indicates the underlying cause of the
veteran's death as severe metabolic acidosis, septic shock
and metformin accumulation, and suspected influenza/staph
pneumonia. Another condition noted as contributing to death
but unrelated to these causes was diabetes mellitus.
An April 2006 expert medical and pathologist opinion from Dr.
B. notes this physician's review of the veteran's voluminous
medical records and service records, and the veteran's death
certificate. In his review of the medical records, Dr. B.
observed that more than three weeks elapsed between the
failure of an implanted morphine infusion pump and the
veteran's death. He further noted that the infusion pump had
been used over five years to address pain from lumbar spine
disability. He also noted appellant's allegation that the
infusion pump failure contributed to complications of
diabetes mellitus and CAD and led to the veteran's death, and
that the inactivity resulting from the morphine pump failure
aggravated both the veteran's diabetes and CAD.
From his review of the medical literature and the veteran's
extensive medical history, including the numerous last
entries into his medical record at the Boise VA Medical
Center, it was Dr. B.'s opinion that any increased disability
associated with the veteran's morphine pump failure would not
have increased the severity of either diabetes mellitus or
CAD. Thus, Dr. B. felt that the veteran's morphine pump
failure did not cause the veteran's death.
Dr. B. also opined that the malfunction of the veteran's
morphine pump could not have substantially contributed to the
worsening of the veteran's diabetes mellitus and/or CAD, nor
could it have contributed substantially and materially to the
veteran's death. The examiner commented that while the
morphine pump was still functional in July 1999, the medical
record documented considerable polypharmacy therapy for the
veteran's numerous medical conditions. In addition, the
medical record entry exactly one month prior to the veteran's
death documented morphine pump failure during the week prior
to that entry for which oral morphine was prescribed pending
planned pump replacement on December 10, 1999. During the
interim until the December 20, 199 phone call by the
veteran's mother, there was no documented failed analgesia
due to the oral morphine use.
While Dr. B. noted that relevant recent medical literature
suggested an association between hypertension and back pain,
he did not opine such a relationship here, and although his
research also discovered severe drug interactions between
antidiabetic medications and other drugs, he stated that this
was not within either the purview or expertise of Dr. B. to
consider further.
Finally, Dr. B.'s review of recent articles addressing back
pain and its co-morbidities and separately addressing
diabetes mellitus indicated no increased complication of
either diabetes mellitus or CAD by back pain.
Evidence provided by the appellant in June 2006 included a
private medical statement from Dr. S. and articles regarding
the use of narcotics for pain, both orally and by way of a
pump implant. One article noted that there was still
considerable debate about whether intrathecal delivery of
opioids provided any statistical advantage from a pain
standpoint over oral medication delivery.
Dr. S. opined that a patient could certainly be adversely
affected if a pain medication in an intrathecal pump were to
run out. He stated that this could not only cause withdrawal
symptoms, but certainly increase general stress to the system
resulting in multiple other symptoms and problems.
Analysis
The record indicates that the veteran was 47 years old when
he died in December 1999, and that a death certificate
indicates that the underlying cause of the veteran's death
was severe metabolic acidosis, septic shock and metformin
accumulation, and suspected influenza/staph pneumonia, with
diabetes mellitus noted as another condition that contributed
to the veteran's death. There is no medical evidence
indicating that these conditions manifested during active
service, or that they were causally related to the veteran's
service-connected lumbar disc disease or the morphine pump
that was used to treat the pain related to this service-
connected disability.
The Board must also point out that the clinical evidence of
record indicates that the first documented evidence of
relevant disability occurred with diagnoses of diabetes and
hypertension in 1989, which have never been related to the
veteran's service or service-connected disability.
In this case, the only evidence in support of the appellant's
assertion that the use of the morphine pump to treat the
veteran's service-connected lumbar disc disease contributed
to the cause of death are the statement of Dr. S., the
articles generally dealing with complications relating to the
use of narcotics to treat pain, and the appellant's own
statements.
Turning first to Dr. S.'s opinion, without acknowledging a
review of pertinent medical records and other documents, Dr.
S. generally opines that a patient could certainly be
adversely affected if a pain medication in an intrathecal
pump were to run out, with withdrawal symptoms and increased
general stress to the system resulting in multiple other
symptoms and problems. However, he did not opine that this
happened in the veteran's case and/or that it contributed to
the veteran's death.
The Board would also point out that a physician's statement
to the effect that a service-connected disability "could" be
related to the cause of death is too speculative to support a
claim for service connection for the cause of the veteran's
death. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992)
(medical possibilities and unsupported medical opinions carry
negligible probative weight). Similarly, articles that
generally note the existence of adverse effects following
withdrawal from narcotic medication are not sufficiently
probative to link complications involving the treatment of
the veteran's lumbar spine disability and the cause of his
death.
As for the appellant's statements asserting that the
malfunctioning pump contributed to the veteran's death, there
is nothing in the record to show the appellant is other than
a lay party without any medical expertise. The United States
Court of Appeals for Veterans Claims (Court) has held that a
lay person can provide probative eyewitness evidence of
visible symptoms, but he or she cannot provide probative
evidence as to matters which require specialized medical
knowledge acquired through experience, training, or
education. Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
Thus, her evidentiary assertions concerning medical causation
lack any probative value.
On the other hand, Dr. B. clearly notes that he reviewed all
of the relevant records and reports and specifically found
the malfunction of the veteran's morphine pump could not have
substantially contributed to the worsening of the veteran's
diabetes mellitus and/or CAD, nor could it have contributed
substantially and materially to his death. The Board further
notes that he gave a rationale for his opinions when he
commented that the medical record documented considerable
polypharmacy therapy even when the pump was functioning, and
that the veteran had been placed on oral morphine as of one
month prior to his mother's phone call on December 20, 1999,
without any documented failed analgesia due to oral morphine
use during the interim.
In that December 20, 1999 telephone call the veteran's mother
also reportedly stated that the veteran had not been taking
his oral morphine and she was concerned that certain symptoms
were related to withdrawal. Thus, any results of withdrawal
were arguably the result of the veteran's own actions.
In summary, the Board finds that the more probative and
persuasive evidence of record establishes that severe
metabolic acidosis, septic shock and metformin accumulation,
suspected influenza/staph pneumonia and diabetes mellitus had
their onset years after active service and were not related
to the veteran's service-connected back disability. The
statement of Dr. S. does not specifically state that the
malfunction of the morphine pump was a cause of the veteran's
death and is otherwise speculative in nature. The articles
proffered by appellant are too general in nature and
therefore of minimal probative value. In addition,
appellant's own statements are neither competent nor
probative of the critical issue associated with respect to
entitlement to service connection for cause of the veteran's
death. Consequently, in view of the lack of evidence of
relevant symptoms until 1989, and the more persuasive and
probative opinions of Dr. B., the Board finds that it has no
alternative but to conclude that a preponderance of the
evidence is against the appellant's claim. Nothing in the
Board's determination is in any way intended to cast any
doubt upon the good faith of the appellant's belief that her
claim is valid. The facts and the law, however, do not
provide a basis for the Board to take favorable action on the
record in this case.
III. Entitlement to Benefits under 38 U.S.C.A. § 1318
With respect to the appellant's claim for benefits under
38 U.S.C.A. § 1318, the Board would simply note that the
veteran was not in receipt of a total disability rating until
December 1994 and he died in December 1999. Consequently, as
he was not rated totally disabled by reason of service-
connected disabilities continuously for five years from the
date of discharge or for a period of 10 years or more
immediately preceding death, benefits under 38 U.S.C.A.
§ 1318 are not authorized. It has been held that in a case
where the law is dispositive, the claim should be denied
because of a lack of legal merit. Sabonis v. Brown, 6 Vet.
App. 426 (1997). Accordingly, this claim is denied as
lacking in entitlement under the applicable regulations.
The Board would further note that as appellant's claim was
filed in February 2000, the Board need not consider whether
there is any basis to consider eligibility for benefits under
the judicial concept of "hypothetical entitlement." VA
amended 38 C.F.R. § 3.22 as of January 21, 2000, and in
amending the regulation, VA's goal was to clearly express
VA's interpretation that an award of DIC under 38 U.S.C.A.
§ 1318 essentially depended on whether the veteran was
receiving total disability compensation for the requisite
period of time, or was entitled to receive the benefit but
for clear and unmistakable error (CUE) in the adjudication of
a claim. Here, the appellant has not alleged CUE with
respect to a prior rating action and her claim was filed
after the amendment to 38 C.F.R. § 3.22. Thus, she is not
entitled to consideration of her claim under the concept of
"hypothetical entitlement." While the appellant was not
furnished the amended versions of 38 C.F.R. § 3.22, the Board
finds that remand is not warranted where the issue is
dispositive as a matter of law and there is no additional
development that could substantiate the claim.
ORDER
The claim for service connection for cause of death is
denied.
The claim for benefits under 38 U.S.C.A. § 1318 is denied.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs